All Your Pics Are Belong to Us: at image hosting services, Terms and Conditions always apply

Smartphone apps make it trivial to snap a photo, upload it to a host, and post a link to Twitter, sometimes in a single step. But by storing a photo on a hosting service to display via Twitter and beyond, you're assigning some subset of your copyright to that sharing site. Since the 1970s, copyright is inherent in the act of creation, no matter whether it's a snapshot or your life's work. There's a conflict when you present some license for your work to parties which you have only a slender thread of a relationship.

This came to a head last week and this due to changes made at the popular TwitPic service. On May 4th, TwitPic updated its terms of use. Before May 4th, the statement about copyright read:

This was modified to include a lengthy section on copyright that raised hackles because it seemed to give TwitPic an enormous grant of rights, even while assuring users that they owned their work. The motivation was likely to clarify policies after Agence France-Presse (AFP) used Haitian photographer Daniel Morel's images of the aftermath of the earthquake without permission. Morel uploaded images to TwitPic, which were then duplicated by another person, and AFP distributed them. A lawsuit is long underway. TwitPic's copyright information shown at that time was more ambiguous about who owned what.

Nonetheless, the new copyright terms raise more questions than they bury. One point of contention was a sloppy paragraph that said once you'd uploaded a picture to TwitPic you couldn't license it to the media, agencies, or other parties and have those groups retrieve it (with your permission) from TwitPic. On May 10th, the terms were revised again and that graf removed.But other troubling rights assignments remain. While TwitPic still says, "You retain all ownership rights to Content uploaded to TwitPic," it also receives a free worldwide non-exclusive license to reproduce your works. Ostensibly, that's to cover its ass in duplicating your images to its servers, pushing them to smartphone apps, and covering other future uses. But it's awfully broad. With those rights, TwitPic could publish books, license your photos, and otherwise reap financial rewards without additional permission or any compensation. (The full copyright terms excerpt is below.)

And a deal announced with World Entertainment News Network (WENN) shows at least one worst-case scenario. WENN, which has a deal with Plixi as well, will act as a licensing agency for TwitPic. WENN's CEO told Amateur Photography in January in relation to the Plixi deal that he "did not rule out selling on other types of Twitter images to the wider media, such as pictures of a breaking news story, if it were brought to its attention, whether featuring a celebrity or not."

Ostensibly, the celebrities will be participants in such licensing and cut in on deals for their photos. But there's no discussion of that in either article, and it may explain the rise of WhoSay, an invitation-only photo-hosting site designed specifically for the famous (and their publicists) to manage and distribute photos for social media and handle associated rights.

Now, I am not a lawyer, although I've been reading copyright agreements for decades and have amassed non-systematic knowledge of the subject. I called Carolyn E. Wright, who goes by the moniker Photo Attorney. Wright, an accomplished nature photographer, publishes regular free advice for shooters on her site, and works closely on rights licenses with her clients. She's highly concerned about TwitPic's terms and similar terms from other organizations.

"I've been trying to warn my blog readers for a long time, you need to read the terms of service, you have to be sure they're not getting too broad a license," she says. She doesn't impute that TwitPic has ulterior motives. "Sometimes I think that this is just poor writing on the terms of service. Or, it's an aggressive lawyer, and it's just the safest thing to do." But the way the current revised terms are written, she says to photographers, "don't use that service."

Wright cites Mobypicture as an example of a copyright statement that she feels protects photographers' rights. That site's terms note, "All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Mobypicture or affiliated third party partners without consent from the user."

Wright says that while professionals may have the most to lose, casual photographers could be equally exploited.

TwitPic didn't respond to a request for comment for this article.

The question at stake here isn't whether we trust TwitPic or other services or not to explain their intent. The intent is in the contract we agree to when we upload our images. If push comes to shove, that's where those firms' lawyers point, and that's where we lose. I've always said in negotiating contracts, "I trust you, or I wouldn't sign a contract with you. But I'm also signing a contract with the person who replaces you in your job, or the company that buys you. It's them I'm worried about."

I've taken a set of scissors to collect the copyright section of the terms of service for many popular services below to compare. Many have quite similar language to TwitPic; others foreswear all rights.

All content uploaded to TwitPic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from TwitPic. It is not acceptable to copy or save another user's content from TwitPic and upload to other sites for redistribution and dissemination.

By uploading content to TwitPic you give TwitPic permission to use or distribute your content on TwitPic.com or affiliated sites.

To publish another TwitPic user's content for any commercial purpose or for distribution beyond the acceptable Twitter "retweet" which links back to the original user's content page on TwitPic, whether online, in print publication, television, or any other format, you are required to obtain permission from TwitPic in advance of said usage and attribute credit to TwitPic as the source where you have obtained the content.

You retain all ownership rights to Content uploaded to TwitPic. However, by submitting Content to TwitPic, you hereby grant TwitPic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and TwitPic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by TwitPic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.

You understand and agree, however, that TwitPic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. Deleted images are only accessed in the event of a legal issue.

Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:

...With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.

We do not claim ownership of the materials you post on, upload to or otherwise place on the Site. However, by posting, uploading or placing such material, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use material. This license ends when you delete the material or your account unless the material has been shared with others, and they have not deleted it.

All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Mobypicture or affiliated third party partners without consent from the user.

You shall retain all of your ownership rights in your submissions; however, by submitting material to Posterous you grant Posterous fully transferable rights to use, reproduce, distribute, modify, transmit, prepare derivative works of, display and produce the material in connection with Posterous and Posterous's business, but solely in accordance with these Terms of Use and our Privacy Policy.

By displaying or publishing ("posting") any Content on or through the ImageShack Services, you hereby grant to ImageShack and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content marked "private" will not be distributed outside the ImageShack Services. ImageShack and/or other Users may copy, print or display publicly available Content outside of the ImageShack Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content). After you remove your Content from the ImageShack Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license to such Content will terminate. If after we have distributed your Content outside the ImageShack Website you change the Content's privacy setting to "private," we will cease any further distribution of such "private" Content outside the ImageShack Website as soon as practicable.

I know i’m not looking at the bigger picture here but two things strike me whenever this intense debate comes up.

1: its called photo sharing. Not show and tell, and i don’t want anyone else using my stuff

2: So what if Flickr makes a fast buck from one of my images? in fact – go ahead, use all my images on national TV – because guess what, i’m still the creator and the more people see that work the better – no? So even if an image sharing site “shares” your work and makes a profit even – who does any referral based on that creativity come to? Yep, you and me the original photographer or artist.

Like I said, I realize theres more too it than that, but I see it simply – my work gets out there regardless of who gets it out there, eventually I win.

Its certainly a hot topic just now. I wouldn’t be suprized if musicians uploading music to youtube, 8tracks, etc etc face the same issues about use – I mean really, who ever reads a T.O.S. for anything? pages and pages of legalese – and the companies know 90% of people will never read the TOS.

Good round up of the various photo sharers. oddly, this is the second article i’ve read along these lines, and neither touches on Hipstamatic, who also had a run in with their T.O.S. and have some legalese in there about their rights to use photos you upload to their FB page, etc.

“non-exclusive” is a critical part of these license terms. Make no mistake, you DO need to grant them a license to distribute your photos if you want to allow other to look at your snaps. That’s WHY you’re posting the photos in the first place. But by explicitly saying that the license that you’re granting them is non-exclusive you retain the right to anything ELSE that you want to do with them, EXCEPT grant an exclusive distribution license to anybody else.

So what? So it’s non exclusive. You’re still giving them a HORRIBLY broad license to exploit your work. It’s even BROADER than a Creative Commons Attribution license

Why broader? Because all CC licenses prohibit use in advertising. Twitpic says they get to use you to advertise their service.

If you haven’t noticed, most people jealously guard their pictures, and tend to not agree to such liberal terms (if they do release them as CC, it’s NC-ND or NC-SA. Check out Flickr; the CC-BY pool is the smallest). So this is far out of line with what people would agree to if it wasn’t buried in a wall of legalese. It’s an abuse of their trust.

These services need to own up and write a license that gives them only the narrow powers they need to run effectively, rather than reserving huge swaths of power “just to be safe”.

Downsizing an image could also be considered a form of quotation, taking a small portion of the work instead of the whole. An image which is 25% the length and height is in effect only taking 1/16 of the image.

“down-sizing an image in order to display it alongside the rest of a webpage impression constitutes making a `derivative’ work. In my view, it should not; it’s merely a necessary and inherent part of being an image-sharing site.”

So from this, only Mobypicture says your pictures are yours no matter what. All the other companies say “they are taken by you, sure, but we can use them as much as we want for any financial gain without asking you first.” Lovely!

It’s all typical legalese – outmoded language from centuries gone by, mangled by someone with their own interests at heart, fitting the nature of image-sharing sites in a manner reminiscent of shapely pegs and holes.

It needs to be established whether down-sizing an image in order to display it alongside the rest of a webpage impression constitutes making a `derivative’ work. In my view, it should not; it’s merely a necessary and inherent part of being an image-sharing site. Derivative works should be where the subject-matter is changed within the image itself. And, crucially, the smallprint must reflect this accurately.

Facebook has a somewhat different model. Here, I’m looking at sites where you may have an extremely loose association, and you could use them primarily to post a photo instead of hosting it yourself. That’s the distinction at least. It’s worth looking at the ToS for all services that host anything you write, shoot, snap, or create.

On thing to note on Flickr’s TOS, Part 9b relates to photos posted to the site. Part 9c, as quoted, refers to any other content beyond photos, graphics, audio or video. So this only comes into play if you’re concerned about something you might write in a flickr group or forum (at least as I understand it). Photos, graphics, audio or video are protected under a differing set of guidlines that offer a bit more protection.

Part 9b:
“With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.”

By accepting this Agreement or using a Nintendo 3DS System or the Nintendo 3DS Service, you also grant to Nintendo a worldwide, royalty-free, irrevocable, perpetual, non-exclusive and fully sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display your User Content in whole or in part and to incorporate your User Content in other works, in any form, media or technology now known or later developed, including for promotional or marketing purposes. (Chapter 1, Nintendo 3DS End User License Agreement)

And your photos can be automatically uploaded each time the device (automatically) connects to a wifi network. Can you imagine Canon or Nikon doing that? It’s especially bad when you consider that one of the main markets for the 3DS (and some of the services you name) is kids.

This is one of the big reasons why I wrote my own media service for my Twitter client of choice. Files are uploaded to my personally hosted WordPress install, and a shortened URL, using my own personally hosted URL shortening service, are spit back.
All these services make life so much fun and social, but I do not like granting every startup trying to sell their soul to whoever will buy them for the biggest payday permission to use my stuff. Even if it is just a dumb picture of my cat.

How does this even work for apps which have 3rd-party api integration to such sites as twitpic, etc? they’re not presenting twitpic’s ToS when you install the app or post the photo, so how would the user even know? They are party to an agreement or terms which they aren’t aware.

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

As you can see, Flickr is one of the good services. Flickr/Yahoo! does not take a permanent non-revocable license to the photos you upload. They only ask you to grant the minimum rights to your work necessary for Flickr to display the photo on their service. Once you delete it, Yahoo! terminates any rights they had on the IP.

At Picuous we have very similar terms to Mobypicture and we make sure that we only ask the smallest license possible to do what we have to do :)

The most shocking thing about Twitpic/yFrog/etc. is how Seesmic, Tweetdeck and other clients sign you in without any mention of their Terms, using your Twitter credentialsâ€”all in the goal of user experience.

But what about copyright infringement? Even if you’re its owner, when your picture is used on another website without your authorization, all you have left is legal actionâ€”and it’s rarely worth the time or the energyâ€¦

Ownership, attribution and tracking go hand in hand and only we provide all three. If you’re interested in these problems, you should check out our service :)http://picuous.com

You retain the copyright in any User Content you post on the Site. SmugMug neither has nor wants any ownership of your Content. However, by uploading and/or posting any User Content to the Site, you grant SmugMug a perpetual, nonexclusive and royalty-free right to use the User Content and the name that is submitted in connection with such User Content, as is reasonably necessary to display the User Content, provide the Services and to facilitate, at Content Owner’s direction, the license of Photos or the sale of Products on the Site.